Court decides was Reasonable Excuse for Contravening Court Order

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Mother withheld Children from Father in breach of Court Order.  

Court found Mother’s decision to withhold Children from Father was reasonable.  

Father makes threats against Children & anger issues.

Father ordered to pay Mother’s Legal Costs fixed at $5,000.00.

Children’s Continuing Time with Father Supervised.


NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

Osman & Bellis [2017] FCCA 1152 (13 February 2017)

Last Updated: 8 June 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSMAN & BELLIS
Catchwords:
FAMILY LAW – Contravention – three contraventions – mother has reasonable excuse for contravening the Orders of the Court to spend time with the father – father has uncontrolled anger outburst – threatens to drown the children – refers to them in vulgar terms – mother entitled to withhold the children contrary to the orders.
Applicant:
MR OSMAN
Respondent:
MS BELLIS
File Number:
CSC 130 of 2012
Judgment of:
Judge Willis
Hearing date:
13 February 2017
Date of Last Submission:
13 February 2017
Delivered at:
Cairns
Delivered on:
13 February 2017

REPRESENTATION

Solicitors for the Applicant:
Collier Lawyers
Counsel for the Respondent:
Mr Jacobs
Solicitors for the Respondent:
Cuthbertson & Co Lawyers

ORDERS

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THE COURT FINDS that the Mother has not contravened the Orders of the Federal Circuit Court of Australia made on 16 May 2014 on all Counts (1, 2 and 3) of the Contravention Application filed by the father on 2 December 2016, and that the mother had a reasonable excuse regarding the safety of the children when acting contrary to the Orders for equal time during the Christmas school holidays

THE COURT ORDERS UNTIL FURTHER ORDER:

(1) All of the alleged contraventions contained in the father’s application filed on 22 December 2016 are dismissed.
(2) The father is to pay the mothers’ legal costs of and incidental to this application, fixed in the sum of $5,000.00 within 30 days from the date of this Order.

It is Ordered that the following variations be effected to the Orders of 16 May 2014

(3) Orders 5, 6, 7, 8, 9, 10, 17, 20 and 23 of the Order dated 16 May 2014 are to be suspended.
(4) The Children are to live with the Mother.
(5) The Children are to spend time with the Father at the following times:-

    (a) Each Monday between 2.30 and 3.30pm with the Father to attend (hobby omitted) training, subject to the discretion of the school authorities;
    (b) Supervised time each Tuesday after school with both children for 2 hours in a public place with the Mother to arrange the delivery and collection from a public venue. The supervisor is as nominated or agreed to by the Mother, noting that the Mother has nominated Ms C (subject to her agreement).
  1. THE COURT NOTES that there is a possible third opportunity each week for the father to attend an event, arising with a sports afternoon at school however that is to be explored with the school as to whether parents are normally invited to this event. The father’s attendance at any school event of any kind is always subject to the discretion of the school.

(6) Order 14 of the Order dated 16 May 2014 is to be varied to read as follows:-

Both the mother and the father are authorised and entitled to attend at the children’s school or school classroom or similar institution within the guidelines for parental attendance at such institutions, subject always to the discretion of the school.

(7) Order 15 of the Order dated 16 May 2014 is to be varied to read as follows:-

Both the mother and the father are entitled to attend at parent/teacher meetings, school concerts, shows, sports days, school ceremonies and such events and functions, subject always to the discretion of the school”.

(8) Order 11 of the Order dated 16 May 2014 is to be varied to read as follows:-

The Father may communicate with the Children by facetime or telephone at 6pm each Sunday and Thursday and the Mother will facilitate this time. The Mother has liberty to record any telephone /skype calls”.

Restraints

(9) The Mother and Father are not to discuss this litigation, including the boating incident, any future living arrangements of the Children, anything said by the Children to the Father or the Mother or anything in any forensic reports prepared in this matter, or any evidence today, either directly or indirectly with the Children, or their presence or hearing. The parents will remove the Children from the presence or hearing any person doing so.
(10) The Father is not permitted to involve the Children in any boating activities of any kind.

Courses

(11) Each of the parties are to do all acts and things to engage at a Contact Centre forthwith.
(12) The Father will confirm with the Court that he has enrolled in Anger Management Course conducted by a recognised agency, within 7 days of the date of this Order.
(13) The Father is to attend the Circle of Security Course at (omitted) forthwith.
(14) The Father is to attend Post Orders Parenting Program and file an Affidavit deposing to when he enrolled, within 7 days. Upon completion of this Course, the father is to file a certificate of completion.

Procedural Orders

(15) The Father is to file and serve a Response and Affidavit in response to the Application filed by the Mother by no later than 27 February 2017.

Independent Children’s Lawyer

(16) That the Children, X, born (omitted) 2007 and Y, born (omitted) 2009, be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit Court of Australia at Cairns.
(17) The Independent Children’s Lawyer is to file a Notice of Address for Service within 7 days of being appointed.
(18) The Independent Children’s Lawyer organise for the preparation of a Family Report and each of the parties are directed to comply with all reasonable requests of the Independent Children’s Lawyer to attend and participate on the dates and times as requested in order for the preparation of the Family Report to occur.
(19) The parties are to each complete and return the Independent Children’s Lawyer’s questionnaire within seven days of receipt. In the event there is a Solicitor representing the party, the Solicitor for the party is directed to forward the questionnaire to their client within 48 hours of receipt.
(20) The Independent Children’s Lawyer is to appoint a psychiatrist as a single expert with the parties to attend at all times requested by the Independent Children’s Lawyer NOTING that each party agrees to be assessed.
(21) A copy of the Transcript of today’s proceedings is to be placed on the file and provided to the Independent Children’s Lawyer. The settled reasons are to be provided to the parties and placed on the file.
(22) The mention date of 15 May 2017 (arising from the Initiating Application filed on 6 February 2017 by the mother) is vacated.
(23) Judge Willis has recused herself from hearing this matter.
(24) This matter is to be listed for mention before Judge Coker on 9 May 2017 at 9.30am in the Federal Circuit Court of Australia at Cairns.

IT IS NOTED that publication of this judgment under the pseudonym Osman & Bellis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT CAIRNS

CSC 130 of 2012

MR OSMAN

Applicant

And

MS BELLIS

Respondent

SETTLED EX TEMPORE REASONS FOR JUDGMENT

  1. This is an application for a contravention filed by Mr Osman, who is the father in his previous relationship with the mother Ms Bellis.

Background

  1. The father has filed an application to contravene the mother for breaching orders. There are three counts. They all relate to the Christmas holidays. Count number 1 occurred during the week of 16 December 2016, then the alternate week; count number 2 occurred 30 December 2016; and then count number 3 on 13 January 2017. The father alleges that the mother without reasonable excuse refused the father access to those periods of time contrary to the orders of 16 May 2014 and in breach of order 7. Ms Collier solicitor represents the father.
  2. The mother admits that she withheld the children but says she has a reasonable excuse. She is represented by Mr Jacobs of Counsel.
  3. Ms Collier, solicitor for the father, has asked the court to make a finding that the mother has no reasonable excuse and that, essentially, as to the threats that were made by the father over the phone to the mother, that the mother should have known that the father did not mean what he said. It is submitted that the mother did not call the police and she did not collect the children from the father, therefore the mother knew the children were not at risk. Ms Collier submits that the children were seen some time later and they were not upset and therefore that it was not necessary for the mother to withhold the children contrary to the orders. Ms Collier submits that the father was just venting and that he had no intention of carrying out the threat; he was just very angry with the situation that he found himself in.
  4. That situation was that his two children were not respecting the father’s property, namely, his $70,000.00 boat, and that they were disobedient and they disobeyed him. The word “disobeyed” is used by Ms Collier. The children disobeyed the father by mucking around in his boat. The children made the father’s boat dirty after he had cleaned it. In fact, it seems that the outing for the day consisted of the children being taken to the boat, to clean it with the father and his new partner. Ms Collier submits that the father was justified in being angry because the children were naughty. Ms Collier submits that the wife should have known that when the father made the phone call to the mother to come and take them away and that he would drown the children and that he had put his hands around the throat of one child that he did not mean that. She submits that the mother is completely in breach of orders by not permitting the father to have the children live with him again during the Christmas holidays pursuant to the Orders of the Court made on 16 May 2014.
  5. Ms Collier solicitor for the father also says that the children have now been with the father since the 27th and that, therefore, they have had three or four nights with him. What is not submitted is that the father turned up at the children’s school and a scene ensued. The police became involved and the police listened to the mother’s recording of the father’s phone call. The mother decided that in order to avoid yet another scene, and knowing that matter was coming back before the court within days the mother took no further action on that day.
  6. Mr Jacobs of Counsel for the mother submitted that the mother had a reasonable excuse for withholding the children as defined in Section 70NAE (4) namely that it was necessary to protect the health or safety of the children. Mr Jacobs also submits that she exercised that decision for no longer that it was necessary to do so. The mother’s reasonable excuse was her reasonable fear subsequent to hearing the father’s anger explosion when the children were spending time with him on a weekend, and the father’s subsequent conduct towards the children. As to the suggestion that the mother did not genuinely care about the welfare of the children, it is submitted on her behalf that the mother knew that the contravention was set down for a hearing in court in a matter of days, that the mother took the position that she would acquiesce to the children leaving with the father, but that wasn’t without a scene happening and police involvement.
  7. In this matter the material for each party has been read into the record. I have heard the evidence of the mother and the father.

The Law

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  1. In this matter the relevant section of the Act which sets out the meaning of contravening an Order is found in section 70 NAC(a)(i) and (ii). A person has contravened an Order if the person has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.
  2. Section 70NAD states that for the purposes of this division there are requirements that are taken to be included when considering a parenting Order. A parenting Order that deals with whom a child is to live includes a provision that people act in accordance with section 65M in relation to the parenting Order. This is a general obligation that a person must not act contrary to the Order. Section 65M makes reference to a person not removing the child from the care of a person, not refusing, or failing, to deliver or return the child to a person and exercise of any of the powers, duties or responsibilities that a person has under the Order. Similar obligations apply in relation to an Order that deals with whom a child communicates as set out in Section 65 NA (2). That section refers to a person not hindering or preventing a person and the child communicating with each other in accordance with the Order or interfering with the communication that a person and the chid are supposed to have with each other under the Order.
  3. As to the meaning of a reasonable excuse, sub sections 70NAE (1) and (2) set out that a person is taken to have a reasonable excuse if a person contravened substantially because at the time the person did not understand the obligations imposed by the Order and the Court is satisfied that person ought to be excused from the contravention.
  4. Section 70NAE (4) provides that in relation to an Order which deals with whom a child is to live, a person will have a reasonable excuse if the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (being the respondent or the child) and that the contravention occurred for not longer than was necessary to protect the health or safety of the person or child. Similar provisions are provided for under s70NAE (6) in relation to contravening an Order dealing with whom a child is to communicate.
  5. The father filed a contravention application on the 21 December 2016t, supported by two affidavits. The mother has an affidavit of 6 February 2017, quite comprehensive. I have also heard the telephone calls that have been referred to in this matter. Annexure CV1 is the transcript of the first call that the mother received on the afternoon it seems, at around 5 pm containing a recording of the father exploding in relation to the children’s conduct.

The Evidence

  1. The mother relies on the contents of that phone call. The father has been cross-examined about the phone call, and Ms Collier has cross-examined the mother.
  2. The father gave an account of incidents that happened on the day, and he refers to the children trashing the joint, (the “joint” being his boat) and putting grease marks everywhere. The father told the children they were rude amongst other things. I will come to the further detail on that topic, but, essentially, the father says to the court the children were so rude and badly behaved that he was entitled to be as angry as he was and that the mother has over reacted by subsequently refusing to allow the children to spend more time with the father during the holidays.
  3. The father gave evidence that he told the mother about the incidents of the children being rude and disrespectful, and he also relayed that he and his girlfriend had gone for a walk and left the children unattended on his boat for a period of time. That was for five minutes, according to the father. The father says that when he and his girlfriend came back (they had gone off to look at a bigger more expensive boat) and he found that the children had caused what he regards as chaos. Based on the father’s evidence today and hearing the evidence of the mother, I can say of the father’s behaviour, that I have concluded that he can be a dangerous man and an irresponsible parent.
  4. This father has engaged in intimidating behaviour to get what he wants, and that has been established today. He makes threats to kill adults and to kill children, as he has done to this mother and to these children. The father has expressly said to the mother in a furious tone “”I’m going to drown these kids. They’re fucking idiots, mate.” He said this to the mother whilst he had sole control of children on his prized boat. He was a parent who was angry and a parent who was clearly out of control.
  5. The father now says that when he made his furious phone call to the mother to come and get the children, that she was supposed to know he did not mean he was going to do anything that he had threatened. It is not quite clear to the court how the mother was to know this. The father said, “She’s supposed to know I didn’t mean it,” and as to the threats… “”I didn’t mean them.”
  6. It is not clear to me when the mother receives the father’s threats that she is supposed to work out that they were not meant and that, “It’s just a joke,” or that , “I’m just venting” as the father said.
  7. I have no evidence that at the time he made the threats, the father said, “I’m just venting or I didn’t mean it.” In fact there were two phone calls and in the second phone call the father continues his tirade saying, “Come and get them. I’m not even staying here. I can’t even remain here.” The father was so angry and volatile that he could not even wait with his two boys for the mother to come and collect the children. He was leaving.
  8. When the father made the call to the mother she heard what he had to say, and even though the call came at a time when the children were supposed to be with the father pursuant to Orders, and the mother was not expecting the call, she nonetheless did organise for the children to be collected as best she could following the unexpected phone call during the father’s holiday time with the children. The father did not invite the mother to come and collect the children, she was ordered to do by the father. The father said “Get them. You come and get them. Just fucking get them.” The mother said in reply, “I’m sorry. I’ve had a few drinks. I can’t do it. Can’t you just stay? Can’t you just –” “No,” was the response. “No. You get them.”
  9. So the volatility, the emotion, the raw threats, the immediacy of the threats, these have all been now been diminished by the father down to an event to be laughed off in the witness box as something that he did not mean. He attempts to shift the focus to the mother for being unreasonable in all the circumstances.
  10. The father has clearly instructed his legal advocate Ms Collier to put forth a case that, essentially, “we all know he was not going to do it”. The questions of his solicitor were accordingly along those lines. Questions to the mother such as the father has, “Never done it, has he?” This line of questioning carries with it the implied theory that because the father did not act on his own threats, the mother ought to believe that no threat he has ever made then or since will ever happen. I do not accept that logic. In this court, where infanticide is a reality, where parents kill children and each other, I see nothing funny or fanciful about a parent admitting to making threats to drown his own children when he has those children in his sole care on a boat. Particularly when he is overtly furious with them and his anger is out of control, such that he is demanding that the mother remove the children from his presence (or more particularly his precious boat). The father could not even manage to contain his anger to a point where he could put the children in the car and return them to the mother. There is no evidence he asked his partner to do this either.
  11. In terms of submissions to the effect that parents say all sorts of things to their children, I do not regard the circumstances of this incident in any way as being the same as a parent who in exasperation of poorly behaved children says, “The children are driving me nuts,” in a general conversation.
  12. To the extent that the father has tried to minimise the gravity of his own threats and behaviour by suggesting that the mother would have said the same thing or to suggest as he said in his affidavit. “I thought it was good that we vented with each other.” I reject the proposition that the threats he made on that day were simply venting. The father was in a rage that day.
  13. Unfortunately, the father is also untruthful. He has expressly lied in his first affidavit. He has obviously been untruthful to his solicitor, who has dutifully followed her instructions and written to the other solicitor to say that everything the mother explained about the circumstances which occurred on that day is a lie. He has sworn his affidavit, and gone right out on a limb and taken the approach of saying, “I emphatically deny saying such statements in jest or otherwise. The father has added to this, “It is absurd to suggest that I would make such threats to the children’s mother, and I did not do so. I have explained the events as they occurred.” That evidence is completely untruthful.
  14. All of the father’s affidavit was written in the calm light of day when the father has had plenty of time to think about it and reflect. The father might have said he apologises for his behaviour, or perhaps could have said, “Look, I said a lot of things in anger,” however, that course was not taken. The father had legal advice. He had time. He swore an affidavit emphatically denying that he ever said anything like the threats the mother deposed to in jest or otherwise.
  15. It was only after the mother filed her evidence of the tape recording she had made of the father’s phone call that the father made the admission he ought to have made right at the outset rather than taking the course of being untruthful. Watching and listening to the father explain why he lied in the first affidavit, or why it wasn’t a lie, was excruciating.
  16. I have listened to the phone call recording twice today during this hearing. Having heard the tape, the father’s explanation today is that he suddenly had a significant lapse of memory. He said he had to listen to the tape 10 times before he realised that “he must have said that, though he could not understand that he would have said that.” This explanation, talking about himself in the third person was entirely unsatisfactory and showed he still had no insight into his own conduct. The father was angry in the phone call. He had a simmering fury. He was dominating towards the mother, ordering her to “get here”. More than that, he expressed his utter loathing for his own children. He referred to them in the most vulgar and demeaning terms, he threatened them with violence.
  17. It was abundantly clear he could not handle the behaviour of his two young children, and on that day he did not even like them. He said to the mother, “They’re fucking idiots, mate.” He said, “I spent the whole fucking day – a whole day cleaning that fucking boat, and we do not come off that fucking boat till we get back until that back deck is dry. They’ve come in – they’ve walked in, not given a fuck, put their grease marks everywhere. We come down, they are fighting on the fucking wharf. I go inside the boat. They’ve fucking trashed the joint. You know, I’m just, like, you fucking rude little cunts, and I told them to watch it. They don’t give a fuck. They don’t listen. They don’t care. I’ve fucking – I’ve literally grabbed X around the throat. I was that pissed at him, and I’ve fucking had enough” and so it went on.
  18. This description of events explained by the father on the phone call to the mother, where the father said he saw the children and the mess they made, and then says “You know, I’m just, like, you fucking rude little cunts.” It is not difficult to understand that these children, aged 9 and 7, were directly on the receiving end of the father’s explosion. Under cross examination, I listened to the father’s evidence that he has bought a boat that cost him $70,000.00. He said he had spent all Wednesday getting it clean. He said he would pay $200.00 to have it polished and cleaned. The father explained that the children were with him and at a point they were playing with a chess set. The father then left them (after they had all been cleaning) unsupervised on the boat whilst he and his girlfriend went for a walk. He said on his return he saw that they have trashed the place. When asked to explain what he meant by “trashed the place”, the father said the children left their footprints on clean surfaces and they generally disturbed the way the father likes to see the boat, which is obviously clean and orderly.
  19. The children’s conduct on that day has sent the father into a stratosphere of anger and intolerance rarely seen over such a puerile incident involving the behaviour of children; behaviour which I consider to be normal for children of this age. Children make messes. The children are 9 and 7 years of age. It is not unusual for children this age to have dirty feet. Children do all sorts of things that will cause children’s footprints to be left in array of places that parents wish they weren’t. Children jump in to the garden in the red dirt and walk inside on clean carpet. Children do that. Children make a mess wherever they go. Regretfully, I have seen a father who has left me with a very strong impression he has no understanding of the age and stage and development of his own children. Nor does he show he has the capacity to respond appropriately in such circumstances.
  20. Rather disturbingly, even today when asked today whether he stands by his conduct, he says, “Yes, I’d do it again” with a smileThe father has some very troubling parental attitudes towards these children and he shows a distinct lack of understanding their developmental stage. I find his capacity to parent and his attitude towards parenting and his parental responsibility deficient, troubling and dangerous.
  21. Having heard the tape recordings, I consider that his anger knows no bounds. He very clearly reported contemporaneously to the mother that he had grabbed X around the throat. After he has calmed down and in the re-telling of the events, he now says he grabbed X “Around the neck” implying that is somehow more acceptable. I do not understand why it would be acceptable for a parent overwhelmed with rage or at all, to grab a child around the neck or the throat.
  22. Each of those reactions are troubling reactions of an angry parent who is older, taller and stronger than either of these children. These children will never live up to his standards if his reaction to their mucking around like children with pieces of chess scattered on a boat and some dirty footprints result in this explosion of anger. It is deeply disturbing to hear a parent who would hold himself out to be a parent who has the capacity to be an equal time parent, engaging in this level of hostility and abuse towards his own children. There was nothing about the description of the children’s behaviour which sounded out of the ordinary, and it ought not be forgotten that the father chose to leave his 9 and 7 year old alone, to their own devices on the boat.
  23. The father has shown considerable immaturity in his perception of how these children should be behaving. He has shown a selfish desire to put his own needs of having a spotlessly clean boat as his entire focus. He has regarded the children as acting in a despicable manner, and he has told them, “I told them to watch it. They don’t give a fuck. They don’t listen. They don’t care. I’ve literally – fuck, I’ve literally grabbed X around the throat; I was that pissed at him”.
  24. The mother said she was alarmed, not only at what she was hearing, but on hearing what he had done to X. The father also said he was going to break their noses. He has not resiled from that. He has said, “I don’t want to look at them. They are just fucking – they are – then I keep – I keep finding more shit they’ve done, and it’s just fucking doing my head in”.
  25. I think the best thing the father did that day was to ring the mother and tell her what he was doing. Regrettably he does not have the skills to handle the children’s behaviour himself.
  26. I do not accept that criticism made by the father, that the mother did not make any effort to collect the children. I reject any submissions that she did not do anything about collecting the children. That submission is contrary to the evidence. Submissions are supposed to be based on the evidence. The mother on receiving the phone call out of the blue, told the father she had had too much to drink and could not drive, so she organised for someone to come over. She had to ring around and find someone to do that, and the father made it clear he would not even keep the children with him whilst she did that. He was so angry, so out of control, so “over” the children – that he was not even going to wait for the mother to make the collection. He had to rely on his girlfriend to stay with the children, he was leaving. He was completely overwhelmed with the children and his own response was he just could not even keep parenting them for a moment longer. He said “I need time out”.
  27. It is disturbing and disappointing that the father has refused to admit even today that he has lied in his own affidavit. His excuses about changing his evidence are implausible.
  28. As I said, even today, even after reading the mother’s material the father would not admit that he lied in his affidavit. I do not accept any evidence or suggestion by the father that in reality, the mother had nothing to worry about when she got that phone call and heard those furious threats. The phone call was prolonged and specific. He gave a graphic and repetitive description of what he regarded as their disgusting behaviour.
  29. The other troubling feature of the father’s evidence, and which I accept was disturbing for the mother, was that he quite deliberately left the children alone in his boat. He walked past the end of the finger that his boat was moored on, and he and his partner went off to have a look at a boat for sale for $130,000.00 on the next finger. The father, in my view, has minimised the time he left the children alone. I do not accept it was for 5 minutes. I will say this to the father: Children in this Court, like children throughout the community have drowned, at times even while parents have been close to them. Drowning is a silent death.
  30. The mother had every reason to believe that left alone, the children could have hurt themselves or come to some harm. They could have been playing around and accidently fallen out of the boat. A child could have hit his head whilst falling. The father’s answer to that suggestion is that “If they had done that, that’s okay because they’re good swimmers, and they’re used to driving the little tender around, so there’s no problem there” – that answer is chilling in its naiveté. This past weekend on the national news a report was made of one child who drowned whilst on a floating object, and the second child is in critical care, because their flotation device unintentionally was carried out to deep water. Accidents happen and it is difficult to predict what will happen with children and boats and water and no supervision. Parents that are responsible do not assume that nothing will happen, particularly when they are not there.
  31. I have no idea why the father took any comfort that there was a locked door to the entrance to the finger in which the boat was moored. He said very confidently without a hint of any fear or concern that the children could swim and take the tender around and that the gate was locked. I do not know what the father was thinking, and how the locked gate would ameliorate the obvious risks. The father has shown little to no insight into what is an obvious and dangerous risky situation of leaving two children, aged 9 and 7, on a boat by themselves. Accidents consist of the unexpected happening.
  32. As to the threats he made to the children, troublingly this is not the first time the father has made threats. I have been taken through the threats he has made for years. It is not in contention that he has made these threats. They are admitted. They are appalling and disgusting. The first armoury that the father reaches for when he wants to get his way is to threaten. He has threatened to embarrass the mother. He has threatened to ruin her relationships. He expressly stated when he found out she was pregnant to someone else that he hoped “the germ inside her would die”. His threats are vile. They are menacing. They are expressly stated for a purpose. I am satisfied particularly in light of his admissions as to the threats he has made for years, that he has engaged in abusive, intimidating behaviour towards the children and the mother, and that his threats constitute family violence as defined under the Family Law Act. The father’s threats are designed to cause fear.
  33. I am satisfied that the father, who was overtly angry and making threats to drown his children, demeaning and insulting them and who has a history of making menacing threats to the mother in the past, that in this context it was entirely reasonable for the mother to withhold the children at the first opportunity. The father in his cowardly explanation today sits in the witness box laughing, saying he did not mean it and she knows it.
  34. The week before last in Queensland, a woman was killed by a partner who made death threats. When he had a chance, he did kill her. How is one to know that someone does not mean a death threat? Who would take that chance, with their own children being a potential victim. It is the same as conducting a bank robbery and making threats with a replica saying to someone in the process, “I’m going to kill you,” and then saying later to justify the behaviour “It was just a replica”. Nobody knows, and the offence is the same. I am deeply troubled that this father lacks the capacity to parent such that he has threatened to drown the children, admitted to grabbing a child by the throat, and threatened to break their noses. There are parents who have drowned children. A threat of infanticide is not a laughing matter. He has also called them vile names.
  35. I am also deeply troubled by what I have seen of the father’s authoritarian attitude towards parenting. He expects immediate obedience. He is naïve and unrealistic in his expectations of children’s behaviour, and when they don’t behave immediately, he reacts badly to their bad behaviour. If his precious boat is so dear to him that his children’s greasy feet must not leave a mark, I wonder why he has ever entertained the idea of having these young children on that boat and instead did not think up a more child focused activity that they could do. They were not even, it seems, on the boat for a trip. They were on the boat for cleaning purposes for the day.
  36. Having heard all of the evidence, I am satisfied that the mother had a reasonable excuse as defined in the legislation. I am quite satisfied that she had a reason to withhold the children based on their health and safety. Is she to wait until the father blows up again and then see what happens the next time

The Law – Reasonable Excuse

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  1. In terms of having a reasonable excuse pursuant to section 70NAE, I am both satisfied that the mother had a reasonable excuse, and I am satisfied that she exercised that reasonableness in the weeks that followed. In my view, she was entitled to withhold them for the following week until this matter came back to court because she had a father who was furious, and he was threatening to harm these children. He also abused them. The father caused a scene at school in insisting on reclaiming the children. The mother knew that this application was before the court in a few days and that the father’s behaviour would be examined at that time. The father in my view was very bold and thoughtless in insisting that he would take possession of the children in such circumstances.
  2. I consider his decision to then instigate a contravention application against the mother, based on lies, and knowing he had lied, and to continue to do so, to be an utter waste of Court time and another exercise of his significant lack of insight into his own behaviour.
  3. I would have thought that given the father’s appalling threats and abuse, that the father would have reflected and reconsidered the wisdom of bringing a contravention application at all. Having then filed a contravention, the moment he heard that there was a recording made contradicting of himself which contradicted his own testimony, that most people might have then shown some insight and would have said, “All right. I agree. I withdraw my contravention. I will get some anger management. I didn’t mean to do what I did”. Some gesture and acknowledgment on his part might have created some feeling of trust and allay the fear of further future similar conduct towards the children that could provide some level of assurance for the mother. But no, the father’s course was to file a contravention application, pursue it right to the end knowing his evidence was untruthful and sit in the witness box, laugh and say it was all a joke.
  4. This application has been a been a waste of the Court’s valuable time in my view.
  5. I dismiss the applications on each count.

ORDERS DELIVERED

Costs

  1. Costs are sought by the mother. The costs argument is sensibly conceded. This application has been an utter waste of time.
  2. I have the power to order costs for fixed amount. I have not been satisfied that the respondent committed a contravention of the primary order. The father’s application has been wholly unsuccessful. He has prosecuted this matter without any basis upon which to do so. The mother is not Legally Aided and is privately funded. I was satisfied that this has been a time wasting exercise. The father is not Legally Aided and is privately funded.
  3. I intend to order that the father pay the mother’s costs of and incidental to the proceedings.

ORDERS DELIVERED

Variation of Orders

  1. Section 70NBA grants the Court power to vary parenting Orders.
  2. I am very troubled about the father’s lack of capacity to care for the children, his appalling attitude towards parenting and his inability exercise appropriate parental responsibility. I am alarmed and concerned at his anger levels and his inability to control himself. Obviously time is needed to talk in relation to final orders which have a week on/week off arrangement that is currently existing.
  3. As I have indicated, having heard all the evidence including the past threats of the father to the mother, I am not satisfied that the orders for week on/week off are still in these children’s best interests. These young children must not be put in a position where they are going to be abused in this manner. The father has shown a deeply disturbing lack of parental responsibility and capacity to parent. I am also troubled, I must say, by the evidence I have heard from the father of the children allegedly telling the children things. I have a strong impression that they are being spoken to about the forthcoming relocation.
  4. In light of what I have heard of the father’s conduct, I do not wish to place the children in a position where they are going to have to try and alert their mother when the father is angry or be subjected to any further frightening outbursts by the father, or worse. I am concerned for the children being left unsupervised in the father’s care, as he has done in the past. I do not want the mother to be in a position of having to cross-examine the children to ascertain whether they were safe or yelled at or threatened. I do not want the children caught up any more cross fire as they seem to be, if the father is having the discussions that he says he is having with the children. Children ought not to be asked to comment about the other parent, because typically children love both parents, and they do not want to have to say bad things about the other parent. This is harmful for children.
  5. Having said that, when they are being frightened or intimidated, as this whole experience must have been, there is no option but to talk to children and to act in their best interests. I have in mind someone being present when the children are with the father and his time being significantly reduced. It is clear to me that he does not have the stamina or capacity to remain in control of himself, let alone to maintain his equilibrium with the children. In my view, the longer the period that the children spend time with him, and the more they misbehave, the angrier he is likely to get.
  6. I am proposing that as an interim measure, the father have day time only until I have a Family Report and the matter is reviewed. I am making orders today to change what I see as orders that are currently placing these children at more risk because the evidence is such that I am satisfied that at this time, the father is deeply lacking in parental skills, and the appropriate demeanour to be dealing with children and disciplining the children. The father appears to be a very immature parent. I have asked the father if he has any mental health issues, and he scoffed at that.
  7. I think it is of relevance as referred to in the email in Mr Cuthbertson’s material regarding a suggestion that the father had ADHD. May be he is adult with ADHD, and, if he is, that will deeply affect his ability to parent on an ongoing basis. Something has to explain the father’s ongoing anger. His explanations about why he would take it upon himself to tell the mother that she is not to have a baby (with someone else) because they have got to work on X’s problems was as absurd as it was controlling. These controlling orders by the father to the mother, all this time after separation, and the fact that the father is still engaging in this conduct, and his volatility, are all very troubling issues in terms of the father’s parenting.
  8. I am worried about his lack of parental capacity as set out in my reasons and as I have said, and I want to have a person present to ameliorate the further risks to the children I have identified until there is a family report prepared. Equal time is not an order in the children’s best interests. On an interim basis, I propose making orders that the children spend daytime only with the father, and a person has to be found who is prepared to be present throughout the father’s time with the children. .
  9. I consider that another adult is going to have to agree to be present with the father and children, because I’m most alarmed and concerned, based on the evidence before me, that these young children are going to be exposed to this level of hostility, danger and anger again.
  10. I accept that there is a long delay at the contact centre, but I’m going to order nonetheless that the parties do all acts and things to engage at the contact centre as a fall-back position in case an appropriate person to be present with the father and the children cannot be found. Day time only, weekends and no further boating activities is my interim position.
  11. Given my findings, I will recuse myself from further involvement in this matter. These orders will be reviewed by the next judicial officer at a time appropriate. I am appointing an Independent Children’s Lawyer as I consider that the family violence in this matter requires that the interests of these children be independently represented.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date: 2 June 2017

NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability.  An example is where the Court has expressly authorised the publication. 

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